Let’s look at section nine of the new bill amending K.S.A. 44-510e. There are two types of permanent partial disability. The first type is called functional impairment which is sometimes called body disability. The other type of permanent partial disability is called work disability. Work disability is determined by averaging the wage loss with the task loss.
An employee may be able to receive what is called a work disability under certain circumstances as follows:
1. The employee must first have a functional impairment that exceeds 7.5% or exceeds 10% when there is a preexisting impairment.
2. There must be a post injury wage loss of at least 10%.
3. This wage loss must be directly attributable to the work injury and no other causes or factors. This would eliminate the situation where one qualifies for a 100% wage loss just due to a job lay off or other causes unrelated to the actual injury in question in the case before the judge.
Prevailing Factor and Preexisting Conditions
The language of the new statute includes numerous attempts to limit the compensation to just the injury that occurred at the time of the accident and its resulting disability. The net effect is to eliminate compensation when the sole cause of the injury or disability was a pre-existing condition. I will review with you the various parts of the new law that have an impact on this issue.
The definition of accident now includes a requirement that the accident or repetitive trauma must be the prevailing factor in causing the injury. K.S.A. 44-508 now includes a new definition of the word “prevailing” which means primary considering all relevant evidence. Primary is not defined and has been interpreted to mean different things in other jurisdictions. No doubt this will be the subject of litigation here in Kansas as well. Black’s Law dictionary defines primary to be first, principal, chief or leading. Where the courts here will draw the line is unknown. This will be a challenge to lawyers as they attempt to obtain medical testimony to clarify the factors involved in the cause of a particular accident.
Section ten of the law deals with the maximum amounts allowed for each type of disability. The bill strikes the words “or any aggravation thereof” from the law.
Section three amending K.S.A. 44-501 in subsection (e) provides that the award is to be reduced by any preexisting impairment.
Also section five amending K.S.A. 44-508 (f)(2) provides that that injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic. The word “solely” suggests that an injury is compensable if it aggravates a preexisting problem but not if the only thing it does is aggravate a preexisting condition. This word suggests that there must be some degree of actual new injury at the time of the accident. The section goes on to provide that for repetitive trauma or accident it will be deemed to arise out of employment if the increased risk or hazard to which the employment exposed the worker is the prevailing factor of the accident and disability.
The focus of the inquiry then becomes what new injury and disability actually comes out of this event, this particular accident. So the net effect of this new language would probably be to limit awards to the disability coming from events at work only.
Workers compensation is an insurance plan that is required by statute. The employer is required to obtain insurance for the employee’s benefit providing certain benefits for job related injuries, disability or death. The law covers most employers with an annual payroll of $20,000 or more. Coverage begins on the first day of work.
You only have 20 days to give your employer notice of the accident, 10 if you no longer work there, for accidents after April 25 of 2013. If the employer has designated in writing that a certain individual should get the notice then notice to anyone else is insufficient. Otherwise give your notice to a supervisor or manger.
For accidents or repetitive trauma after May 15, 2011 to April 25, 2013 the law requires notice to be given to the employer by the earliest of the following dates:
1. Thirty (30) days from the date of accident or the date of injury by repetitive trauma;
2. If the employee is working for the employer against whom benefits are being sought and such employee seeks medical treatment for any injury by accident or repetitive trauma, 20 calendar days from the date such medical treatment is sought; or
3. If the employee no longer works for the employer against whom benefits are being sought, 20 calendar days after the employee’s last day of actual work for the employer.
Notice may be given orally or in writing. Where the notice is provided orally, if the employer has designated an individual or department to whom notice must be given and such designation has been communicated in writing to the employee, notice to any other individual or department shall be insufficient. If the employer has not designated a person, notice must be provided to a supervisor or manager. Where notice is provided in writing, notice must be sent to a supervisor or manager at the employee’s principal location of employment. The law places the burden on you to prove that such notice was actually received. The notice shall include the time, date, place, person injured and particulars of such injury. It must be apparent from the notice that the employee is claiming benefits under the workers compensation act or has suffered a work related injury.
For accidents before May 15, 2011, the law requires you to give the employer notice, stating the time and place and particulars of the accident, together with your address within 10 days after the accident, which can be extended to 75 days for just cause. Also please keep in mind that you only have 200 days from the date of the accident or from the last time compensation was paid or medical was paid by your employer to file a written claim with your employer.
You have three years from the date of the accident or two years from the date of last compensation paid, whichever is later, to file an application for hearing with the office of workers’ compensation. Any claim that has not proceeded to final hearing, a settlement hearing, or an agreed award under the workers compensation act within three (five years if the accident was prior to May 15, 2011) from the date of filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, shall be dismissed by the administrative law judge for lack of prosecution.
Effective Date of the New Workers Compensation Law
May 15, 2011 is the effective date of the new workers compensation law. Section 30 of HN 2134 provides that the bill will take effect after May 15, 2011 and publication in the Kanas register. If you go to the Kansas register, which you can find at the Secretary of State’s web page, you will find that the bill was published on April 28, 2011. So this bill will apply to accidents that occur on or after May 15, 2011.
Video or Telephone Conference
Your workers compensation claim can now be heard by the judge in person or by video or telephone conference. We have often had settlements conducted by agreement over the phone. Now section 28 of the act allows the other hearings to be in person, by video or telephone conference.
Insurance companies and self-insured employers are required now to issue warning notices to employees that are receiving temporary disability benefits. The notice would inform the employees that they could be committing fraud if the person had accepted work with a different employer that requires the performance of activities that the employee previously claimed they could not perform due to the injury. The loss of benefits and restitution could result from the fraud as well as other penalties.
There is now a presumption that medical care terminates once the employee has reached what is called maximum medical improvement. However, the employee may overcome this presumption by proving it is probable that medical treatment is needed. If an employee has not received medical treatment within two years from the date of an award or within two years from the date of the last medical treatment, an employer would be permitted to seek a permanent termination of future medical benefits. At this point there will be a presumption that no future care is needed. This presumption may be overcome by competent medical evidence. (See section 11 and 12 of the bill).
Retirement and Workers Compensation
This 2011 law would specify that when the employee takes a lump sum retirement, the workers compensation benefits would be reduced by the weekly value of the retirement. The amount of the reduction is calculated by amortizing the lump sum at four percent per year over the life expectancy of the employee. (See the last part of section 3)
The 2011 bill will replace the term “average gross wages” with the term “average wages”. The calculation is made by adding the wages the employee made in the 26 week period prior to the accident and dividing by the number of weeks the employee worked. Calendar weeks are used in the calculation. Wage is defined as the total of money and additional compensation earned by the employee. Under the old law you would look at whether the employee was part-time or full time, and the hourly rate. See section 13 of the bill amending K.S.A. 44-511
Section 20 of the new workers compensation law allows the parties with the approval of the judge to have a lump sum payment prorated over the life expectancy of the injured employee.
If the employee has an accident resulting in an injury to either both arms or both legs the disability is calculated using the whole body disability formula under the new law.
Work Disability Under the New 2011 Law
Permanent partial general disability is a percent of functional body impairment which is calculated using the 4th edition of the AMA guides to the evaluation of permanent impairment. In certain situations the employee may be entitled to more than this functional or body disability. You may be entitled to what is called a work disability.
To get a work disability the functional impairment must exceed 7.5% or 10% if there is a preexisting functional impairment. In addition, to qualify for a work disability the employee must have a 10% wage loss due to the injury.
The work disability is determined by averaging together the percentage of post-injury task loss due to the injury and the wage loss. Task loss is the percent the employee has lost the ability to perform work tasks he or she had during the last five years. This must be established by the opinion of a physician and based on physician imposed restrictions that are permanent. These restrictions must be due to the work injury. Wage loss is the difference between what the employee was earning at the time of the injury and what he or she is capable of earning afterwards. There is a list of factors used to determine “capable of earning” which includes availability of jobs. When the employee is actually working there is a rebuttable presumption that the wage he or she is earning is what he or she is capable of earning.
Refusal of accommodated employment results in a rebuttable presumption of no wage loss, which would then disqualify the employee from getting a work disability.
Permanent Total Disability
Permanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. The law requires expert evidence to prove permanent total disability. As a practical matter most of the time expert testimony was presented on this issue under the old law. The old law listed specific conditions that would result in an award of permanent total disability, those provisions have been deleted. In addition, the injured worker would not be eligible to receive more than one award for permanent total disability during the worker’s lifetime.
The 2011 Kansas workers compensation law requires that awards for permanent partial impairment, work disability, or permanent total disability be reduced by the amount of the functional impairment that is pre-existing. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic.
Time for Hearing
The 2011 Kansas workers compensation law changes the period of time from five years to three years that a case may remain open without a hearing. After a case has been on file for three years the employer would be able to file for a dismissal. The employee would have to establish good cause for keeping the case open, if not, the case would be dismissed with prejudice. If a claim had not proceeded to a regular hearing within a year from the date of a preliminary award denying compensation, the employer would be allowed to file for dismissal.
Injuries Caused by Alcohol or Drugs
Injuries caused by the influence of alcohol or drugs may not be compensated under the law. No longer would the employer need probable cause to require testing but the standard would be sufficient cause. A split sample is to be made available to the employee and the employee can overcome the positive results of a drug test by clear and convincing evidence. If it is shown that the employee was impaired at the time of the injury there shall be a rebuttable presumption that the accident was contributed to by the impairment.
The employee’s refusal to submit to a chemical test shall result in the forfeiture of benefits if there is sufficient cause to suspect the use of alcohol or drugs or if the employer’s policy clearly authorizes post-injury testing.
When Compensation is Not Allowed
Under the new Kansas workers compensation law there are certain situations where no compensation is awarded under the act. Compensation for an injury shall be disallowed if such injury to the employee results from:
(A) The employees deliberate intention to cause such injury;
(B) The employee’s willful failure to use a guard or protection against accident or injury which is required pursuant to any statute and provided for the employee;
(C) The employee’s willful failure to use a reasonable and proper guard and protection voluntarily furnished the employee by the employer;
(D) The employee’s reckless violation of their employer’s workplace safety rules or regulations;
(E) The employee’s voluntary participation in fighting or horseplay with a co-employee for any reason, work related or otherwise.
Subparagraphs (B) and (C) above shall not apply when it was reasonable under the totality of the circumstances to not use such equipment, or if the employer approved the work engaged in at the time of an accident or injury to be performed without such equipment.
The Maximum Compensation for Workers Compensation Benefits
The new Kansas workers compensation law adopted this year increases the maximum compensation for various benefits to employees hurt on the job. Permanent total disability increased from $125,000 to $155,000 and permanent partial disability increased from $100,000 to $130,000.